Lessons for the Supreme Court from the Jedi Council

Just as the inhabitants of the galactic Republic needed to believe in the wisdom of the Jedi Council, Americans need to believe in the Supreme Court.

PHOTOGRAPH BY MARY EVANS / LUCASFILMS / RONALD GRANT / EVERETT

I have only just now caught up with the relaunched “Star Wars” saga, coming late to it because, truth be told, I’m not much of a fan. The inconsistencies seem too absurd. The residents of that far, far away galaxy are even more amnesiac than Americans are. In Episode IV, what was once the original “Star Wars,” the whole Jedi Force thing is a misty half-remembered religious cult that all but a few scoff at as an antiquated relic—even though, as we later learn in the prequels, it had been a dominant force in the life of the Republic less than twenty years before, with its own high tower and council. It’s as if Clintonism were already as forgotten among Democrats as—well, actually, as it is.

In the “Star Wars” realm, various reasons have been produced for this weird amnesia, though the actual reason is obviously that George Lucas hadn’t entirely figured out the backstory when he wrote that first movie, or known that he’d ever be held so tightly accountable for its details. And then, when he did work that Jedi Council into the prequels, some twenty years after the first movie was released, it turned out to be the most grossly inept rubber-masked gang in the history of high-minded quangos. You could practically be wearing a T-shirt that says, “Hello, I am a Sith Lord,” and they wouldn’t sniff the dark force coming from your armpits. A rational person would conclude that, despite their own relentless self-promotion of their extra-rational, hyper-reasoning, instinctive sense—their communion with the Force!—this was not in fact a council into which you should put a lot of confidence. That distant galaxy seems to have an undue cultural investment in the wisdom of the Jedi Council, even in the face of its ineptitude.

The taboo against implying that a gravely installed council may be no wiser or more insightful than any eight or nine other people leads us, naturally enough, to the current American political battle over the Supreme Court and Justice Antonin Scalia’s potential replacement. The stakes, everyone agrees, couldn’t be higher. If a single vote falls one way or another, as Senator Ted Cruz points out, decisions such as Heller v. D.C., and with it the reading of the Second Amendment—does it give private individuals a right to own a gun, or reserve that right only to members of a militia?—could be reversed.

Yet, if a textual interpretation can be so altered by a single vote as to mean exactly the opposite of what it had officially been thought to mean, then surely it seems less like a disinterested interpretation than like a passionately held opinion trying to pass as a disinterested interpretation. If four English professors, readers of “The Pickwick Papers,” held that Mr. Pickwick was meant to be the embodiment of intrinsic evil, and four others that he was the embodiment of bourgeois benevolence, we would not say that the solution was to add a ninth English professor. We would say that they were making incompatible readings of the same text because of strong and irreconcilable differences in values and beliefs and expectations. We would recognize that the difference must lie less in the words of the text than in the mind of the reader. (To be sure, English professors sometimes do argue in this way—but that is why David Lodge and Malcolm Bradbury write comic novels about them.) A form of reasoning that can produce such directly opposed results certainly looks like a kind of rationale-seeking in the guise of reasoning.

After all, if the votes of these judges are so often predictable in terms of the politicians who appoint them, how to sustain the fiction of detached judgment? When, in the 2000 case of Bush v. Gore, the Justices had a chance, in effect, to vote for President, the vote fell in astonishingly neat partisan lines. (Justice Scalia liked to pretend that it didn’t, but it did.) Just as the Jedi Council seems to be functioning on guesswork and mutual hypnosis more than actual expertise, the workings of the American Supreme Court too often seem, to an outsider who has not bought into this cult—say, a Canadian—more like the manufacture of after-the-fact rationales designed to give the appearance of footnoted legalism to what are, in truth, the same ideological passions that have the rest of the country in their grip.

Nonetheless, Americans are required to believe, with the same passion that they believe that the domestic champions in their peculiar sports are actually “world champions,” that the Supreme Court, like the Jedi Council, is made up of at least some superior, disinterested minds who exist in mystical communion with founding fathers dead two hundred years. Just as the inhabitants of the galactic Republic needed to believe in the wisdom of the Jedi Council, Americans need to believe in the Supreme Court.

The result is that Americans need to believe in two opposed things at once. First, that the Court is a purely political institution, and then that some of its members (the ones we agree with) are disinterested scholars pursuing a higher philosophy of law. The late Justice Scalia’s pretense was that “originalism,” a doctrine of tracking pure intention alone, could absolve judges from ideology—but, of course, as has been pointed out countless times, the original intentions he found almost always conformed precisely to the prejudices and passion of a right-wing Catholic Republican of the twenty-first century. (He did allow flag burning, but since no one actually burns flags the way people actually have abortions or gay people have relationships or states execute prisoners, it’s a cost-free concession.)

When it came, recently, to the Affordable Care Act, Scalia was so eager to dispose of it entirely—despite the law having been the key element in a twice-popularly-elected President’s platform, and having been passed by Congress, including a supermajority in the Senate—that he was ready to do so on the basis of what was essentially a typo that everyone who had been involved agreed misrepresented the known intention of its authors. Scalia hated the idea of national health insurance, because it was, he said, like the government forcing you to buy broccoli. In order to rule against it, as many have pointed out, he had to defy his own oft-stated principles. “His second vote to gut the Affordable Care Act, in King v. Burwell, was a direct attack on the theory of statutory interpretation Scalia offered in a 2012 book,” one admirer has written. But he hated broccoli, and so he overruled himself.

Originalism is philosophically incoherent (the old texts bear the same multivalent marks of dispute and argument that persist now) and in practice ridiculous. (Think only of the diametrically opposite results that derive from regarding the preamble to the Second Amendment as a controlling, or a dependent, clause.) When considering cases like Roe v. Wade or those dealing with gay marriage, one can acknowledge that the Founders almost certainly didn’t intend to protect abortion, or to consider the right of people whom they would have seen as “sodomites,” who existed outside the law, to marry. But at least those decisions are defended by a doctrine that accepts that there can be such a thing as contemporary extensions of older principles, and make no claim to be anything else.

The deeper problem lies in the constant downgrading of “politics” as somehow being a lesser activity than the text-oriented interpretation of a document, or the high-minded—and single-minded—application of an abstract interpretive legal doctrine. We don’t believe that intellectuals are mere interpreters. We haven’t for a long time. In a post-scientific age, we generally accept that reliable conclusions are made from evidence and experience, not from torturing old texts. Yet we can’t, emotionally, entirely accept this. We need authority for fear of anarchy. So we rely on the Constitution, or pretend to, more or less as “Star Wars” fans rely on the imagination of George Lucas—or at least on the idea that there is a consistent imagination there.

Between authority and anarchy lies argument—and as an arena of political argument, the Supreme Court has something to be said for it. It’s a place where what everyone else is arguing over gets argued over more formally and in slightly better language. But an argument is not an oracle. There is no Force—no divine text, no inspired reading, no Jedi Council. Justice Scalia, like many another Justice, was a passionate politician fighting political battles for his religious and ideological views with all the words and arguments at his disposal. To pretend otherwise is to participate in a galactic humbug.